58 F. 991 | U.S. Circuit Court for the District of Eastern Pennsylvania | 1893
The case is bere on an agreed statement of facts. The only question is whether the defendant is entitled to set off the assessment made on Mr. Lewis’ stock, and the $1,000 note discounted prior to the deposit sued for. If he is so entitled judgment must be entered (under the agreement) for the defendant, otherwise for the plaintiff. Any question which might have arisen respecting the remedy adopted, (a suit at law) is waived. If the money may be recovered in equity he is entitled to judgment; for in such case it is the plaintiff’s and the proposed set-off cannot be allowed. If the note had been discounted after the deposit and therefore presumably on the faith of it, or the defendant’s situation respecting it, or respecting the assessment, had been prejudiced by reason of the* deposit being in Lewis & Sons’ name, the result would be otherwise. Of course, the defendant cannot discharge a debt due the plaintiff by crediting it with a debt due by Mr. Lewis. If, as before suggested he had suffered disadvantage from the deposit being in Lewis & Sons’ name, he would have a defense to
We have nothing to do, therefore, but to decide whether the money, as between him and Lewis & Sons, is his. Mr. Lewis was his trustee for the $2,000 — holding it for safe-keeping. He depos-iled it in bank, presumably in pursuance of Ms duty, though in his firm's name. It remained there until the bank closed, (a very few days la for) and wars then delivered to the receiver with other funds of the hank. Possibly it might he contended that the terms of the agreement do not render it clear that the money remained in the hank, though Lewis & Sons’ deposits at Mo time thereafter fell below’ $2,000. So such suggestion, however, has been made. On tbe contrary the case was presented by both parties on the hypothesis that the money did continue in the bank; and this is manifestly what the agreement intended to express. Two thousand dollars remained there continuously; and in the very short period which elapsed between the deposit and the hank’s failure, it is improbable that many changes occurred in the amount. The fact however if contested, might not be important. .Money hears no earmark, and it is sufficient in such cases to trace the fund, as this is traced. The general subject has been so frequently and so fully discussed by the courts that nothing can profitably be added to what has been said. In the folio whig cases it has been discussed with reference to the varied circumstances which they present: Frazier v. Bank, 8 Watts & S. 18; Bank v. Jones, 42 Pa. St. 536; Stair v. Bank, 55 Pa. St. 364; Bank v. King, 57 Pa. St. 202. Some English cases (suits at law) among them Sims v. Bond, 5 Barn. & Adol. 389, and Tasuell v. Cooper, 9 C. B. 509, seem on first blush to be inharmonious with the foregoing authorities; hut this arises from the fact that in England equity was not administered in common-law courts or through common-law forms, at the time; otherwise the apparent conflict would not exist. In Pennell v. Deffell, 23 Eng. Law & Eq. 460, the rule as administered there by chancery Is stated and applied. It does not differ from that applied in the Pennsylvania cases cited. Without inquiring whether the plaintiff’s right to follow and recover his property may be enforced by an action at law in this court, it is sufficient under the agreement as we Lave seen, that he certainly may do so in equity — in other words it is sufficient to find that the property is his.
Judgment will therefore he entered for the plaintiff.
